Supreme Court of the United States

No. 15-1977 IN THE Supreme Court of the United States October Term, 2015 GERALD BLACK, ET AL, Petitioners, v. JAMES WALSH AND CINDY WALSH, Respondents. On Writ of Certiorari to the Twelfth Circuit Court of Appeals BRIEF FOR RESPONDENTS Attorneys for Respondents Team 2412

QUESTIONS PRESENTED I. Did the United States District Court for the District of Pacifica correctly decide that Pacifica Health & Safety Code 124.1 violates the Establishment Clause of the First Amendment? II. Did the public school violate the Due Process Clause of the Fourteenth Amendment when it showed The Truth About Vaccines to elementary school children despite knowing that their parents would disapprove? ii

TABLE OF CONTENTS QUESTIONS PRESENTED.. ii TABLE OF CONTENTS.... iii TABLE OF CITED AUTHORITIES. v OPINIONS BELOW..... vii STATUTORY PROVISIONS INVOLVED... vii STATEMENT OF THE CASE... 1 ARGUMENT.. 4 I. The Appellate Court correctly found that the Pacifica Health and Safety Code 124.1 violates the Establishment Clause of the Constitution because the statute fails both the Lemon and endorsement tests.... 4 A. Pacifica Health and Safety Code 124.1 s purpose is to endorse religious beliefs while ignoring other personal beliefs, which is not a secular legislative purpose..... 7 B. The Pacifica Health and Safety Code 124.1 primarily advances religion because it values religion above all other beliefs...... 9 C. The Pacifica Health and Safety Code 124.1 fosters and excessive government entanglement with religion because it puts the government in a position of determining what does and does not constitute a sufficient religious belief..... 11 D. The Pacifica Health and Safety Code 124.1 fails the endorsement test because it conveys the message that religion is favored or preferred........ 14 iii

II. Public school officials violated the Due Process Clause of the Fourteenth Amendment when they showed The Truth About Vaccines to elementary school children despite knowing their parents would disapprove.... 17 A. Pacifica school officials violated the parents fundamental rights of care, custody, and control of their children..... 17 i. Fundamental Rights..... 18 ii. Strict Scrutiny..... 22 B. The public school officials actions were not rationally related to a legitimate goal.. 26 i. State Interest..... 27 ii. Rational Relationship.... 27 iii. Indoctrination..... 28 iv. Arbitrary Imposition...... 30 CONCLUSION 32 APPENDIX A A APPENDIX B... B APPENDIX C. C iv

TABLE OF CITED AUTHORITIES Supreme Court Cases Cnty. of Allegheny v. ACLU, 492 U.S. 573, 590-94 (1989).. 5 Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). 38 Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987).... 6 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 44 (2004).. 23 Lemon v. Kurtzman, 403 U.S. 602, 612-14 (1971).. passim Lynch v. Donnelly, 465 U.S. 668, 688-89 (1984) (O Conner, J., concurring). 21 Lyng v. Nw. Indian Cemetery Protective, 485 U.S. 439, 451-52 (1988). 36 Moore v. East Cleveland, 431 US. 494, 498-506 (1977)... 29, 30-32, 37, 38 Meyer v. Nebraska, 262 U.S. 390, 399-402 (1923) 25, 27, 30, 34, 37 Parham v. J.R., 442 U.S. 584, 623-25 (1979)... 26 Pierce v. Soc y of Sisters, 268 U.S. 510, 529-536 (1925). 27 Prince v. Massachusetts, 321 U.S. 158, 159-71 (1944). 26-28, 30-32 Reno v. Flores, 507 U.S. 292, 301 (1993). 25, 26 Sch. Dist. Of Abington Twp. v. Schempp, 374 U.S. 203, 206-24 (1963) 14, 15 Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390-92 (1985)... 16, 17 Troxel v. Granville, 530 U.S. 57, 64 (2000).. 25, 26, 29 Wallace v. Jaffree, 472 U.S. 38, 56 (1985).. 14, 21 Washington v. Glucksberg, 521 U.S. 702, 721 (1997).. 30, 34 Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) 25, 29 v

Appellate Court Cases Brown v. Hot, Sexy, and Safer Prod., Inc., 68 F.3d 525, 533-40 (1st Cir. 1995). 27, 28 Fields v. Palmdale School Dist., 447 F.3d 1187, 1191 (9th Cir. 2005) 38 Leebaert v. Harrington, 332 F.3d 134, 140-43 (2d Cir. 2003).... 27, 28 Mason v. General Brown Cent. Sch. Dist., 851 F.2d 47, 51 (2d. Cir.1988)... 20 Parker v. Hurley, 514 F.3d 87, 92-107 (1st Cir. 2008)... 28, 35, 36, 38 Smith v. Jefferson Cnty. Board of Sch. Comm rs, 788 F.3d 580, 586-87 (6th Cir. 2015) 13, 22, 23 Swanson v. Guthrie Ind. Sch. Dist., 135 F.3d 694, 696-97 (10th Cir. 1998). 28 Constitutional Provisions U.S. CONST. amend. I.. 4, 32 U.S. CONST. amend. XIV.. 19, 32 Other Authorities Dorit Rubinstein Reiss, Thou Shalt Not Take the Name of the Lord Thy God in Vain: Use and Abuse of Religious Exemptions from School Immunization Requirements, 65 Hastings L.J. 1551, 1557 (2014)...... 21, 22 vi

OPINIONS BELOW The unreported opinion of the United States Court of Appeals for the Twelfth Circuit appears on pages 9 15 of the record. The unreported opinion of the United States District Court for the Southern District of New Canada appears on pages 1 8 of the record. STATUTORY PROVISIONS INVOLVED The statutes involved, sections 123 and 124.1 of the Pacifica Health and Safety Code, are respectively located at Appendices B and C. vii

STATEMENT OF THE CASE This case regards the state of Pacifica s clear violation of the Establishment Clause by removing the personal-belief exemption from mandatory vaccinations while maintaining the religious exemption, resulting in a clear preference for religion over non-religion by the state. Also, Pacifica and the West Beverley School District have infringed on the rights of parents, James and Cindy Walsh, under the Due Process Clause of the Fourteenth Amendment by showing a mandatory in-class video that encouraged their children to challenge the parent s decision not to vaccinate. James and Cindy Walsh are the parents of twin children, Brenda and Brandon, who attend the fourth grade at West Beverley Elementary School. R. at 1. A public elementary school in West Beverley Heights, Pacifica, West Beverley Elementary students have been subject to immunization requirements under 123 and 124 of the Pacifica Health and Safety Code. R. at 1. Similar to all other states, Pacifica requires that any child enrolled in the public school system must be vaccinated unless they qualify for a specific exemption. R. at 2. However, beginning in August of 2015, 124 was replaced by 124.1, which decreased the amount of immunization exemptions allowed for Pacifica citizens. R. at 1. Despite the fact that Pacifica itself has not experienced an outbreak, the Pacifica legislature chose to make these changes in responses to outbreaks in other states and the rumored connections that immunization exemptions have to the issue. R. at 2. Prior to the implementation of 124.1, parents who lived in Pacifica could obtain an immunization exemption for their children in one of three ways. R. at 2. First, 1

parents could receive a medical exemption by obtaining official documentation from a medical professional that their child was unfit for vaccination. R. at 2. Second, parents could obtain a religious exemption by submitting a statement declaring that vaccination goes against their religious beliefs. R. at 2. Finally, a parent could obtain a personal-belief exemption by submitting a statement that they have a personal belief against vaccination. R. at 2. It is this final category that was eliminated by 124.1, leaving only the religious and medical exemptions. R. at 2. Concerned by outbreaks in other states, the Pacifica Superintendent of Public Education distributed a pro-vaccination video, The Truth About Vaccines, to every school district within the state. R. at 3. Targeted at children, the video promoted the beliefs that autism is not linked to vaccination and that effectiveness of vaccines is directly correlated to the number of children vaccinated. R. at 3. One portion of the video portrays a scene in which a group of children are instructed by physicians that vaccines are not linked to autism. R. at 3. The children then take this information home and persuade their supposedly misinformed parents to change their position on vaccination. R. at 3. The video closes with the statement, Now that you know the truth about vaccines, it s up to you to spread that truth to your family and friends. R. at 3. As part of West Beverley Elementary s new health protocol, the principal of the school prohibited unvaccinated children from participating in off-campus field trips. R. at 3. Instead, the principal required that the unvaccinated children remain at school while the rest of the students enjoyed field trips. R. at 3. On one such occasion during September 2014, while the rest of the students visited a local petting zoo, the principal 2

ordered that The Truth About Vaccines be shown to the non-vaccinated students. R. at 3. The principal has decided that the video will be shown again during the upcoming school year, with no option for parents to opt out of letting their children view the video. R. at 3. At least four children from personal-belief exempt households were vaccinated after viewing the video. R at 3. Since their children entered the school system, the Walsh family has invoked the personal-belief exemption outlined in 124. In her written statement, Cindy Walsh cited a personal belief that autism was linked to immunizations, which was supported by years of internet research. R. at 3-4. However, after being required to view The Truth About Vaccinations, the Walsh twins went home to their parents and requested that they be vaccinated. R. at 4. During the discussion, the children questioned their parents competency and showed a general lack of respect for their authority. R. at 4. Following the implementation of 124.1, the Walsh family no longer qualifies for an immunization exemption. R at 4. As a result, Cindy and James Walsh have filed this action for injunctive relief in order to prevent the relevant authorities from implementing the new statute on the grounds that it violates the Establishment Clause of the First Amendment. The Walsh family has also filed for declaratory relief in hopes that this Court will rule that the mandatory showing of The Truth About Vaccines undermines their parental rights regarding the care, custody, and control of their children. R. at 4. Mr. and Mrs. Walsh also seek an injunction prohibiting the school from showing the video to children again in the future. R. at 4. Both parties agree that summary judgment is appropriate at this point. R. at 4. 3

ARGUMENT The United States District Court of the District of Pacifica correctly found that Pacifica Health & Safety Code 124.1 violates the Establishment Clause of the First Amendment because the statute fails both the widely used Lemon test and the endorsement test. To prove a statute s constitutionality in the face of the Establishment Clause, the statute must satisfy each of the three prongs presented in the Lemon test. The endorsement test clarifies the first two prongs of the Lemon test. 124.1 fails at least two of three prongs of the Lemon test. First, 124.1 does not have a secular legislative purpose. The state maintained the religious exemption while eliminating the personal-belief exemption, showing that 124.1 s purpose is to endorse religious beliefs while ignoring other personal beliefs. Second, 124.1 has the primary effect of advancing religion because it values religion above all other beliefs. Lastly, 124.1 fosters an excessive government entanglement with religion because it puts the government in a position of determining what does and does not constitute a sufficient religious belief. I. The Appellate Court correctly found that the Pacifica Health and Safety Code 124.1 violates the Establishment Clause of the Constitution because the statute fails both the Lemon and endorsement tests. The Establishment Clause of the Constitution provides that Congress shall make no law respecting an establishment of religion... U.S. CONST. amend. I. This Court has explained that the purpose of this clause is to prevent, as far as possible, the intrusion of either [the church or state] into the precincts of others. Lemon v. 4

Kurtzman, 403 U.S. 602, 614 (1971). This Court has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution's affairs. Cnty. of Allegheny v. ACLU, 492 U.S. 573, 590-91 (1989). Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to the infidel, the atheist, or the adherent of a non-christian faith such as Islam or Judaism. Cnty. of Allegheny, 492 U.S. at 590. The language of the Establishment Clause is vague at best. It commands that there should be no law respecting an establishment of religion. A given law might not establish a state religion but nevertheless be one respecting that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment. Lemon, 403 U.S. at 612. In the absence of precisely stated constitutional prohibitions, [the Court] must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: sponsorship, financial support, and active involvement of the sovereign in religious activity. Id. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from making adherence to a religion relevant in any way to a person's standing in the political community. Cnty. of Allegheny, 492 U.S. at 593-94. 5

To decide whether a governmental action violates the Establishment Clause, [the Court has woven] together three main jurisprudential threads. Smith v. Jefferson Cnty. Bd. of Sch. Comm rs, 788 F.3d 580, 586 (6th Cir. 2015). The first thread is the Lemon test. Id. An action comports with the Establishment clause only if it satisfies the Lemon test s three distinct prongs. Id. The Lemon test has been applied in all but one case since its adoption in 1971. Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987). The next thread is the endorsement test. Id. The Sixth Circuit has treated the endorsement test as a refinement or clarification of the Lemon test. Smith, 788 F.3d at 587. If either the purpose or effect of the government activity is to endorse or disapprove of religion, the activity is unconstitutional. Id. The final jurisprudential thread involves a historical approach. Smith, 788 F.3d at 587. This thread takes the view that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Id. A historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted. Edwards, 482 U.S. at 583 n.4. Additionally, the endorsement test has largely been treated as a clarification of the widely used and accepted Lemon test. It is directly linked to the first two prongs of the Lemon test. Thus, the constitutionality of 124.1 in the face of the Establishment Clause is dependent upon passing the Lemon and endorsement tests. The Pacifica Health and Safety Code 124.1 fails the Lemon test because it does not have a secular legislative purpose, its primary effect is the advancement of religion, 6

and it fosters an excessive government entanglement with religion. Furthermore, the Pacifica Health and Safety Code 124.1 fails the endorsement test because it conveys the message that religion is favored or preferred. A. Pacifica Health and Safety Code 124.1 s purpose is to endorse religious beliefs while ignoring other personal beliefs, which is not a secular legislative purpose. A law violates the Establishment Clause if the law does not have a secular legislative purpose. Lemon, 403 U.S. at 612. When applying the purpose test, it is appropriate to ask whether the government's actual purpose is to endorse or disapprove of religion. Wallace v. Jaffree, 472 U.S. 38, 56 (1985). A governmental intention to promote religion is clear when the State enacts a law to serve a religious purpose. See Edwards, 482 U.S. at 593 (holding a statute that required the state s public schools to give balanced treatment to creation science and evolution science was in violation of the Establishment Clause because the statute was designed either to promote a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects). See Sch. Dist. Of Abington Twp. v. Schempp, 374 U.S. 203, 206-24 (1963) (holding a statute that required students in a public high school to read Bible verses and pray each morning was in violation of the Establishment Clause because the practice was religious in nature and intended to be so). [N]o consideration of the second or third criteria is necessary if a statute does not have a clearly secular purpose. Wallace, 472 U.S. at 56. The legislative purpose of 124.1 was not secular. In Sch. Dist. Of Abington Twp., the statute had a clear religious purpose. Students were required to read from 7

the Bible and recite The Lord s Prayer. One could likely conclude that requiring these activities to take place functioned as a governmental endorsement of Christianity. The statute also ignored the feelings of those students who practiced a different religion or abstained from religious practices altogether. While the religious purpose of the statute in the instant case is not as obvious as in Sch. Dist. Of Abington Twp., both statues value religious beliefs over other personal beliefs. The same effects that are present in Sch. Dist. Of Abington Twp. are realized in the instant case. 124.1 requires that religious exemptions to medical immunizations remain effective while personal-belief exemptions are eliminated. Like in Sch. Dist. Of Abington Twp., this sends a very clear message that religion is highly valued and has the full endorsement and support of the government. The statute in Edwards did not require a school to teach either creation science or evolution science, but provided that if either one was taught, the other must also be taught. The stated purpose of the statute was to protect academic freedom, however, this Court determined that the statute violated the Establishment Clause because the goal of providing a more comprehensive science curriculum is not furthered either by outlawing the teaching of evolution or by requiring the teaching of creation science. Here, Senator James Wright, the lead sponsor of 124.1, stated that the legislature maintained the religious exemption while, at the same time, eliminating the personalbelief exemption because [r]eligious freedom is all the more important when raising our children. This statement clearly illustrates that the legislature s actual purpose 8

was to endorse religion. The stated purpose in no way indicates that the statute has any valid secular purpose. Section 124.1 clearly serves no secular purpose. Instead, it was enacted to promote the ideal that only religious belief matters and warrant the utmost level of protection. Thus, 124.1 fails the first prong of the Lemon test. Consequently, 124.1 violates the Establishment Clause of the First Amendment. B. The Pacifica Health and Safety Code 124.1 primarily advances religion because it values religion above all other beliefs. A law violates the Establishment Clause if the law s principal effect is advancing or inhibiting religion. Lemon, 403 U.S. at 612.... [A]n important concern of the effects test is whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the non-adherents as a disapproval, of their individual religious choices. Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390-92 (1985) (holding the school s program in which religious students split their school day between religious and secular classes was in violation of the Establishment Clause because [the] pervasive [religious] atmosphere... increase[d] respect for the church as an institution to guide one's total life adjustments and undoubtedly help[ed] stimulate interest in religious vocations ). The inquiry into this kind of effect must be conducted with particular care when many of the citizens perceiving the governmental message are children in their formative years. Id. In recent years, [this Court has] paid particularly close 9

attention to whether the challenged governmental practice either has the purpose or effect of endorsing religion. Sch. Dist. of Grand Rapids, 473 U.S. at 390. Section 124.1 s primary effect was the advancement of religion even if that was not the legislature s purpose. It is important to evaluate whether the adherents of the controlling denomination perceive the statute as an endorsement of their religion, and whether the non-adherents perceive the statute as disapproval of their individual religious choices. In Sch. Dist. of Grand Rapids, the disputed statute, which mandated that students split their time between religious and secular classes, very clearly had the effect of advancing religion. Placing students in a pervasive religious atmosphere inevitably makes a lasting impression them; especially elementary-aged students who are still figuring out the way the world works. It would be extremely difficult to place a non-religious child in this environment and expect her religious interests to remain unchanged. Additionally, a non-religious child would have a difficult time believing her lack of religion is acceptable and approved of by her peers and teachers. Religious students are included as part of the majority, while non-religious students are made to feel like outsiders. The same things are true in the instant case. Here, religious students get the benefit of being exempt from medical vaccinations. Students whose parents believe that vaccinations are dangerous or unnecessary, however, must either be immunized or separated from their peers. With this result, it would also be difficult to avoid concluding that the effect of the statute does not advance religion. Isolation from peers is an enormous motivating factor for elementary-aged students to seek religion. The 10

effect of the statute is also clear when looked at from the parents perspectives. Nonreligious parents are given an incentive to lie about their religious beliefs in order to have a valid reason for exempting their child from vaccinations. Section 124.1 favors religious beliefs over non-religious, personal beliefs. It creates an incentive for some while placing a burden on others for no other reason than their religious preferences. Thus, the statute is in violation of the Establishment Clause and is unconstitutional. C. The Pacifica Health and Safety Code 124.1 fosters and excessive government entanglement with religion because it puts the government in a position of determining what does and does not constitute a sufficient religious belief. A law violates the Establishment Clause if it fosters an excessive entanglement with religion. Lemon, 403 U.S. at 613. In order to determine whether the government entanglement with religion is excessive, [the Court] must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. Id. at 615. In Lemon, this Court held that a Rhode Island statute and Pennsylvania statue, both of which provided aid to church-related elementary and secondary schools with regard to instruction in secular matters, were in violation of the Establishment Clause because the statutes fostered excessive entanglement with government and religion. This Court reached this conclusion... particularly in view of (1) the religious purpose and operation of church-related elementary and secondary schools, (2) the 11

enhancement of the process of religious indoctrination resulting from the impressionable age of the pupils, particularly in elementary schools, (3) the necessity of state surveillance to insure that the teachers, who were subject to control by religious organizations, observed the restrictions as to purely secular instruction, (4) the states examination of the parochial schools financial records to determine which expenditures were religious and which were secular, (5) the probable intensification of political divisiveness along religious lines resulting from the annual appropriations required under the statutes, benefiting relatively few religious groups, and (6) the selfperpetuating and self-expanding propensities of the innovative statutory programs. Lemon, 403 U.S. 615-23. Section 124.1 fosters an excessive government entanglement with religion. In Lemon, the schools that benefited from government aid were religious in character. The schools were designed with the purpose of educating students from an extremely early and impressionable age through a religious lens. The States were providing aid to fund instruction in secular subjects singularly. It would require a significant amount of oversight on the part of the government to ensure that the funds were being used accordingly. Teachers would need to be monitored and the schools financial records would need to be audited to guarantee compliance. This would result in an unacceptable amount of interaction between church and state. Although the schools affected by the statute in the instant case are public schools instead of private religious schools, the same amount of interaction between the government is likely to result if 124.1 is upheld. Public schools were established to 12

provide students with a free and secular education. Religious ideology is not discussed or interwoven into the curriculum, yet religious students still possess an advantage the most students do not. While religious students might not view exemption from vaccinations as an advantage or benefit, those families who do not have the right to exempt but sincerely believe they should, definitely feel that a benefit has been conferred. Many believe that this is a benefit that some are willing to lie for. The breadth of current religious exemption laws in many states and the limits on the ability of officials to investigate the validity of alleged religious beliefs opposing immunization make religious exemptions especially vulnerable to abuse. Dorit Rubinstein Reiss, Thou Shalt Not Take the Name of the Lord Thy God in Vain: Use and Abuse of Religious Exemptions from School Immunization Requirements, 65 Hastings L.J. 1551, 1557 (2014). Knowing that abuse is likely to occur, it would contradict the purpose of the exception to allow non-religious students to lie and gain vaccination exemptions. [A] threshold inquiry into the religious aspect of particular beliefs and practices cannot be avoided if [the Court is] to determine what is in fact based on religious belief, and what is based on secular or scientific principles. Mason v. General Brown Cent. Sch. Dist., 851 F.2d 47, 51 (2nd Cir. 1988). This threshold inquiry would have to be performed on a grand scale since nonmedical exemptions from school immunization requirements have increased dramatically over the past decade. Reiss, supra at 1556. Alternatively, if the government decided to remain silent and allow non-religious families to take advantage of the religious exemption to vaccination in order to avoid 13

excessive entanglement, 124.1 still fails the Lemon test. All three prongs of the Lemon test must be met to allow a statute to stand in the face of the Establishment Clause. 124.1 very clearly advances religion and serves a religious purpose. Consequently, the statute violates the Establishment Clause of the Constitution. D. The Pacifica Health and Safety Code 124.1 fails the endorsement test because it conveys the message that religion is favored or preferred. It has never been entirely clear... how the three parts of the [Lemon] test relate to the principles enshrined in the Establishment Clause. Focusing on... endorsement or disapproval of religion clarifies the Lemon test as an analytical device. Lynch v. Donnelly, 465 U.S. 668, 688-89 (1984) (O Connor, J., concurring). The purpose prong of the Lemon test asks whether government s actual purpose is to endorse or disapprove of religion. Id. at 690. See Wallace, 472 U.S. at 56-57 (a bill which authorized a one-minute period of silence for meditation or voluntary prayer was found to be unconstitutional when Senator Donald Holmes, the sponsor of the bill, made a statement indicating that the legislative purpose of the bill was an effort to return voluntary prayer to public schools reasoning that the purpose of the bill was to endorse religion). If the law was enacted for the purpose of endorsing religion, no consideration of the second or third criteria [of Lemon] is necessary. Edwards, 482 U.S. at 585. The bill in Wallace was passed solely for religious purposes, which is a clear governmental religious endorsement. The government s endorsement of religion is just as apparent in the instant case. The school districts could have chosen to eliminate 14

both the personal-belief and religious exemptions to ensure that only medically necessary exemptions were available. The obvious secular purpose of such an action would be to keep students healthy and safe by vaccinating each student who is medically able to receive the treatment. Choosing to protect only religious beliefs, however, would likely appear to be an endorsement of religion to non-religious persons. While the first Lemon prong is subjective, the second is objective. It asks whether, irrespective of government s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. Smith, 788 F.3d at 587. The endorsement test does not preclude government from acknowledging religion or from taking religion into account in making law and policy. Wallace, 472 U.S. at 70. It does, however, preclude government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. Id. Such an endorsement infringes the religious liberty of the non-adherent, for [when] the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. Id. In Wallace, this Court distinguishes a state-sponsored moment of silence from a state-sponsored vocal prayer or Bible reading by the message it conveyed to students. Unlike prayer or a Bible reading, a moment of silence need not be associated with a specific religion. Consequently, a student who chooses to engage in a moment of silence need not compromise his or her beliefs. That student need not feel singled out and sent the message that he or she does not belong. Alternatively, a state-sponsored 15

prayer or Bible reading conveys the message that a particular religious belief is supported, and those not possessing that belief are outsiders. Here, 124.1 has the same effect as a state-sponsored prayer. Non-religious students who want to be exempt from vaccination due to personal beliefs are made to feel like outsiders. The message the government conveys is that religious beliefs are superior to all other beliefs and should receive preferential treatment. Even if this is not the message that the government meant to convey, the benefit conferred to one group based on their religious preferences is evident for all to see. The third prong of the Lemon test remains relevant in the face of the endorsement test because such entanglement would still be grounds for striking down the activity, even if there is no hint of endorsement or disapproval. Smith, 788 F.3d at 587. Section 124.1 clearly fails to hold up against the criteria established by this Court in both the Lemon and endorsement tests. Some would argue that these are not the correct approaches to determining a statute s constitutionality when faced with the Establishment Clause. The coercion test provides that, at a minimum,... government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious faith, or tends to do so. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 44 (2004). Even if the coercion test is the correct standard by which to measure a statute s constitutionality when faced with the Establishment Clause, 124.1 would still fail this test. 124.1 coerces non-religious families to support and participation in religion so that they may 16

receive the coveted vaccination exemption. Even if the families lie about their support or participation to gain the exemption, the Establishment Clause prohibits the government from putting its citizens in a predicament that forces them to behave as such. Armed with the knowledge that this Court has relied on the Lemon test in all Establishment Clause cases except one, 124.1 simply cannot be upheld when put to that test. Nor can 124.1 withstand the scrutiny of the endorsement test. As such, the appellate court correctly found that 124.1 violated the Establishment Clause. II. Public school officials violated the Due Process Clause of the Fourteenth Amendment when they showed The Truth About Vaccines to elementary school children despite knowing that their parents would disapprove. Pacifica public school officials violated the Due Process Clause of the Fourteenth Amendment by exposing children to the public-health propaganda film that they reasonably knew would contravene the parents wishes. First, the Walshes assert a fundamental liberty interest that is specially protected by the Constitution. The state cannot infringe on the Walshes parental rights in determining whether to vaccinate their children and in preventing the state from intentionally impeding on their ability to maintain this choice for their family. The public school officials actions were unconstitutional under either the standard strict scrutiny test as well as under the less stringent rational basis analysis. A. Pacifica school officials unconstitutionally violated the parents fundamental rights of care, custody, and control of their children. 17

The Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property, without due process of law. U.S. CONST. amend. XIV. This Court has long recognized that the Amendment s Due Process Clause guarantees more than fair process. Troxel v. Granville, 530 U.S. 57, 64 (2000). The Clause also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301 (1993). i. Fundamental Rights. A parent s right to direct the care, custody, and control of their children has long been recognized by the Supreme Court as a liberty interest traditionally protected by society. Troxel, 530 U.S. at 66. It is, in fact, perhaps the oldest of the fundamental liberty interests recognized by this Court. Id. at 64. The Supreme Court emphasized the historical significance of parental rights within the nation s history in Yoder, explaining, This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. Wisconsin v. Yoder, 406 U.S. 205, 232 (1972). Further, the liberty protected by the Due Process Clause includes the right of parents to establish a home and bring up children and to control the education of their own. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The Court reaffirmed this stance in Troxel, noting that it has held consistently [i]n a long line of cases that a parent s right to direct the education and upbringing of one s children is a liberty that is specially protected by the Due Process Clause. Troxel, 530 U.S. at 66. 18

Where there is no claim that the parents are unfit in their role, courts presume them to be acting in their child s best interest. Id. at 67. The law historically has recognized that natural bonds of affection lead parents to act in the best interests of their children. Parham v. J.R., 442 U.S. 584, 623-25 (1979). There is, therefore, no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent s children. Troxel, 530 U.S. at 66 ( The problem here is not that the Superior Court intervened, but that when it did so, it gave no special weight to Granville s determination of her daughters best interests. More importantly, that court appears to have applied the opposite presumption ). Further, the Supreme Court explained in Reno v. Flores that the best interests of the child is not the legal standard that governs parents or guardians exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves. Reno, 507 U.S. at 304. This does not, however, mean that the family unit is not beyond regulation in the public interest, and neither are rights of parenthood... beyond limitation. Prince v. Massachusetts, 321 U.S. 158, 166 (1944). This Court explained in Prince that the state, acting to guard the general interest in youth's well being, may act as parens patriae to restrict a parent s control, for example, by requiring school attendance, regulating or prohibiting the child s labor and in many other ways. Id. at 166-68. Additionally, the state s authority is 19

not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Id. While the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, the Supreme Court emphasized in Meyer that an individual s fundamental rights must be respected. Meyer, 262 U.S. at 401. The U.S. Court of Appeals for the First Circuit has held that the scope of parents rights to direct the upbringing and education of their children does not include a right to exempt their child from public school requirements. Leebaert v. Harrington, 332 F.3d 134, 140 (2d Cir. 2003). The First Circuit Court of Appeals held in Brown v. Hot, Sexy, and Safer Prod., Inc. that it interpreted the Supreme Court s holdings in Meyer and Pierce v. Soc y of Sisters to evidence the principle that the state cannot prevent parents from choosing a specific educational program, but did not agree that this freedom encompasses a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children. Brown v. Hot, Sexy, and Safer Prod., Inc., 68 F.3d 525, 539 (1st Cir. 1995); see Pierce v. Soc y of Sisters, 268 U.S. 510, 529-536 (1925). The court further explained: If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school s choice of subject matter. We cannot see that the Constitution imposes such a burden on state educational systems. The U.S. Courts of Appeals for the Second and Tenth Circuits similarly have held that while the state cannot prevent parents from choosing a specific educational 20

program, this fundamental constitutional liberty does not include a parent s right to dictate the curriculum at the public school to which they have chosen to send their child. Leebaert, 430 F.3d at 140. Courts in these circuits are rightfully wary of parental helicoptering invading the traditional sanctity of fundamental parental rights protected by the Constitution. Appropriately, these courts have held against parents claims to such fundamental rights as exempting a child from mandatory attendance at a public school s AIDs awareness program; attempting to enroll a child only part-time in selected courses at a public school; requesting to be excused from attending health education classes; and demanding removal from the curriculum of school books that promote awareness and understanding of sexual orientation. Brown, 68 F.3d at 533-540; Swanson v. Guthrie Ind. Sch. Dist., 135 F.3d 694, 696-97 (10th Cir. 1998); Leebaert, 430 F.3d at 140-143. However, the Walshes do not ask this Court to create the existence of a fundamental right of every parent to tell a public school what his or her child will and will not be taught, as the First Circuit court in Leebaert feared when it ruled against a father s attempt to dictate which books should be made available to his children. See Parker v. Hurley, 514 F.3d 87, 101-102 (1st Cir. 2008). Nor do they ask this Court to provide parents a constitutional right to control each and every aspect of their children s education, as the Tenth Circuit ruled against in its decision in Swanson that a mother s request to allow her daughter to attend public school on a part-time basis to supplement her home schooling was not a fundamental right under the Constitution. See Swanson, 135 F.3d at 694. 21

Mr. and Mrs. Walsh ask the Court to consider its decision in Moore in recognizing that fundamental rights that are not directly expressed or identified may nonetheless be found in the spirit and tradition of the law throughout our Nation s history: [U]nless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment s Due Process Clause, we cannot avoid applying the force and rationale of these precedents. Moore, 431 U.S. at 500-501. The Court in Moore explained that although previous cases including Yoder, Pierce, and Meyer were concerned with traditional parental authority in matters of child rearing and education, the rationale behind those decisions was appropriately applied to the grandmother s family relationship. Id. at 501. The Court noted the importance of keeping careful attention to this Court s function under the Due Process Clause as well as a close understanding that tradition is a living thing, emphasizing that the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. Moore, 431 U.S. at 500-502. ii. Strict Scrutiny. Justice Thomas explained in his concurring opinion in Troxel that the appropriate standard of review for an infringement of fundamental rights protected by the Constitution is strict scrutiny. Troxel, 530 U.S. at 80. The strict scrutiny test requires the state to come forward with a compelling interest that justifies intruding on parents fundamental rights, and the state s actions must be narrowly tailored to meet 22

that interest. See Moore, 431 U.S. at 498-500. The Supreme Court explained in Washington v. Glucksberg that the Fourteenth Amendment forbids the government to infringe [on] fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Further, Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts. Meyer, 262 U.S. at 400. Although this Court in Flores applied a less rigid rational basis analysis in determining the constitutionality of certain INS procedures, Justices O Connor, Souter, Stevens, and Blackmun noted that in order to justify implicating a person s liberty interest, there must be a sufficiently compelling government interest. Flores, 507 U.S. at 309-42. The burden lies with the state to prove that it has a compelling interest, And, as Justice O Connor explains, that burden is not easily met, for when government action infringes on this most fundamental of rights, we have scrutinized such conduct to ensure that the detention serves both legitimate and compelling interests, and, in addition, is implemented in a manner that is carefully limited and narrowly focused. Flores 507 U.S. at 315-319 (O Connor., J., & Souter, J., concurring); Flores 507 U.S. at 339-342 (Stevens, J., & Blackmun, J., dissenting). The Supreme Court held in Prince that the state s interest in protecting a 9- year-old child against the dangers of street-preaching and selling materials on a public road was sufficiently compelling to intrude on the parental rights of the young girl s guardian, who claimed the practice was of religious importance to the family despite its 23

prohibition under state child labor laws. Prince, 321 U.S. at 159-170. The guardian in Prince sought to engage the 9-year-old in activities which she knew to be barred by law. Id. at 159-160. Here, however, Mr. and Mrs. Walsh do not seek to avoid any compliance with the law. Their children are lawfully exempt from vaccination. The Walshes simply ask that this Court recognize that their fundamental rights to care for their children not be outweighed by the state s desire to have vaccine-exempt children nonetheless vaccinated. It is important to note that the Supreme Court in Prince was explicit in its desire to maintain the Constitutional protection of fundamental rights, stating: We neither lay the foundation for any [that is, every] state intervention, which may be done in the name of [children s] health and welfare, nor give warrant for every limitation on their activities. Id. at 171. Even where the state claims a compelling interest, its actions still must be narrowly tailored toward achieving the desired goal. The court must examine carefully the importance of the governmental interests advanced and the extent to which they were served by the challenged [state action]. Moore, 431 U.S. at 499. In Moore, the state s housing ordinance was aimed at preventing overcrowding, minimizing traffic and parking congestion, and avoiding an undue financial burden on the city s school system. Id. at 499-500. However, the court found these goals, although legitimate state interests, were only marginally served by the state s actions in preventing a grandmother from living with her two grandsons simply because the two boys were cousins rather than brothers. Id. at 505-506. 24

Pacifico public school officials did not appropriately narrow their course of action: The school district chose a video about vaccines that was created by doctors who admit the film s intent is to induce its viewers to get vaccinated and to convince everyone they know to also get vaccinated. The child actors in the film chastise their parent actors for their concerns over the children s health and well-being as faulty and irrational. The elementary school children are then instructed by their child actor counterparts to go home and inform their parents of the grave mistakes they have made in attempting to, inadequately, make the proper decisions concerning their child s care, health, and well-being. Further, as in Moore, the state s actions only marginally serve the state s claimed interest in the health of its school children, as it is focused very specifically on a single group of unvaccinated children while arbitrarily ignoring others. If the state s sincere interest is the health and well-being of its citizens, its actions were at best not narrowly focused on this goal. Any number of alternative courses of action could easily have been chosen instead, for example: Why not provide parents directly with material on the benefits of vaccinations? Send children home with permission slips of sorts that explain why their children are secluded from certain school activities, and offering information on vaccination and how their children can be included in future activities? Require parent-teacher conferences for parents of vaccine-exempt children to notify and update parents on how their children are affected by their unvaccinated status? The state chose none of these less-invasive courses of action, despite their being both more educational and informative ( specific, 25

scientific information tailored to an appropriate adult audience ) as well as far more direct and efficient. Why send a fourth-grader home to relay such apparently vital information when it can be provided, more easily, in fact, straight to the intended recipient? If the state s sincere interest, rather, is the education of its schoolchildren ( which it does not claim, but only is mentioned in defending its action as a part of its discretionary curriculum ), its actions were nonetheless still not narrowly focused on this goal. First, the video chosen by the school district did not aim generally to teach children about vaccinations. Rather, its specific goal was to compel children to get vaccinated and to encourage their peers to do the same. Further, the video not only was not a part of the school s educational curriculum, but it also was shown only to a very small minority of its students. If the school s intent were truly to educate its student body about the benefits of vaccinations, surely it would want to provide this valuable information to more than a mere 5 percent 1 of its children? B. The school officials actions are not rationally related to a legitimate goal. Even if this Court determines that the parents have not asserted constitutionally-protected fundamental rights, the state still fails to meet even the lowest bar for its conduct under the rational basis test. Under this analysis, courts consider whether the state s actions constitute arbitrary impositions or purposeless restraints. Glucksberg, 521 U.S. at 721. The established doctrine is that [liberties] may not be interfered with, under the guise of protecting the public interest, by 1 See The unvaccinated, by the numbers, CNN (February 4, 2015), http://www.cnn.com/2015/02/03/health/the-unvaccinated/. 26